OSHA returns to court over injury record-keeping rule

A new rule by the US Occupational Safety and Health Administration (OSHA) requiring electronic record-keeping and reporting of workplace injury and illness among “high-hazard” industries, construction included, is headed back to court.

The National Association of Home Builders (NAHB), the US Chamber of Commerce, and other groups filed suit against the rule, named “Improve Tracking of Workplace Injuries and Illnesses,” last week in the US District Court for the Western District of Oklahoma, alleging it violated the US Constitution’s First and Fifth Amendments. Phased-in data submission was to begin January 1, 2017, with enterprises employing 20 to 249 required to submit data from OSHA form 300A. Additionally, all enterprises employing 250 or more workers were to submit information from forms 300 and 301. Injury data was to be posted on OSHA’s web site.

This isn’t the first time the rule has fallen under legal scrutiny. Last July. the Associated Builders and Contractors and other groups attempted — and failed — to obtain injunctive relief in the US District Court for the Northern District of Texas from the rule’s anti-retaliation provisions that would “limit post-accident drug testing and safety programs that contribute to jobsite construction safety,” the complaint alleged. In December, US District Court Judge Sam Lindsay ruled against the plaintiffs.

By comparison, the NAHB suit hinges on the rule’s alleged violation of the First Amendment “by compelling companies to submit their confidential and proprietary information for publication on a publicly available online database,” the complaint reads. “There is no evidence that publication of this information will have any effect on workplace safety and health. The limited authority given OSHA by Congress to require employers to collect and maintain injury and illness data cannot be read to allow the agency to force employers to make public this information in violation of their constitutional rights. Further, the rule violates the Fifth Amendment by failing to provide employers adequate notice of what constitutes ‘reasonable’ reporting procedures, subjecting employers to citation and potentially significant penalties without providing due process of law.”

“Among the many issues with the rule, there are significant concerns associated with OSHA’s requirements of employers to submit detailed injury and illness logs to the agency for public posting,” NAHB Chairman Ed Brady noted in a statement. “Not only does OSHA not have the authority to do this, it also exposes a business to significant reputational harm, all without demonstrating any evidence that it would more effectively reduce workplace injuries and illnesses.”

“JUST AS PUBLIC DISCLOSURE OF THEIR KITCHENS’ SANITARY CONDITIONS ENCOURAGES RESTAURANT OWNERS TO TO IMPROVE FOOD SAFETY, OSHA EXPECTS THAT PUBLIC DISCLOSURE OF WORK-INJURY DATA WILL ENCOURAGE EMPLOYERS TO INCREASE THEIR EFFORTS TO PREVENT WORK-RELATED INJURIES OR ILLNESSES.”

“Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” Assistant Secretary of Labor for Occupational Safety Dr. David Michaels said last May, upon issuance of the rule. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers, and the public that they operate safe and well-managed facilities. Access to injury data also will help OSHA better target our compliance assistance and employment resources at establishments where workers are at greatest risk and enable ‘big data’ researchers to apply their skills in making workplaces safer.”

Although OSHA requires many employers to keep a record of injuries and illnesses to assist them in identifying hazards, the agency claims it receives little or no information concerning the incidents available to it.

Assuming the rule isn’t sidelined in court, data collected by OSHA will amass the largest publicly available data set on work injuries and illnesses, allowing researchers to “better study injury causation, identify new workplace safety hazards before they become widespread, and evaluate the effectiveness of injury and illness prevention activities,” the agency noted. “OSHA will remove all personally identifiable information associated with the data before it is publicly available.”

But Brady isn’t buying it. “[We] cannot allow this type of regulatory overreach to occur,” he said.